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R-7395 .. - ~ "- e e ~ CA:RMM:lamr005/hpw city Council Meeting 03-24-87 Santa Monica, California RESOLUTION NUMBER 7395(CCS) (CITY COUNCIL SERIES) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA MONICA AUTHORIZING EXECUTION OF AN EASEMENT AGREEMENT FOR PROPERTY AT l535 OCEAN AVENUE WHEREAS, the City desires to encourage restaurants to provide outdoor dining opportunities when feasible~ and WHEREAS, Ooean Avenue Properties, owner of the property at 1535 Ooean Avenue, Santa Monioa, California desires to provide outdoor restaurant seating in conjunction with its remodeling plan for such property~ and WHEREAS, in order to provide such outdoor restaurant seating the use of a portion of the publio right-af-way is required~ and WHEREAS, Ocean Avenue Properties desires that the city grant an easement for the use of the public right-of-way~ and WHEREAS, the Easement Agreement provides that Ocean Avenue Properties shall pay a fair and just easement fee for the duration of suoh easement, NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES RESOLVE AS FOLLOWS: - 1 - ~ ~ e e , SECTION l. The grant of easement to Ocean Avenue Properties, a California partnership is hereby approved and the city Manager is authorized to execute an Easement Agreement that is substantially similar in form to the one attached hereto. SECTION 2. The City Clerk shall certify to the adoption of this Resolution, and thenceforth and thereafter the same shall be in full force and effect. APPROVED AS TO FORM: ~ \- . ::--0- ROBERT M. MYERS city Attorney lamr005/hpw - 2 - ~ It e .. Adopted and approve th day of March, 1987. I hereby certify that j J1 AA (JA r \.../ '"' - M"ayo~ th~Oing Resolution No. 7395(CCS) ----- was duly adopted by the city Council of the city of Santa Monioa at a meeting thereof held on March 24, 1987 by the following counoil vote: Ayes: Counci1members: Finkel, Jennings, A. Katz, Reed, Zane and Mayor Conn Noes: Councilmembers: None Abstain: Councilmembers: None Absent: Councilmembers: H. Katz - ..... ---.- ~ '" ATTEST: --- ~cn~ Cit; ~ie~k_' - --- -. e e ~ Reoording Requested By: The City of Santa Monioa When Recorded Mail to: city of Santa Monica 1685 Main Street Santa Monica, california 9040l Attention: city Attorney EASEMENT AGREEMENT THIS EASEMENT AGREEMENT (this "Agreement") is made as of this day of , 198 , by and between the City of Santa Monica, California, a municipal corporation organized and existing under the laws of the State of California and its Charter (hereinafter the "Grantor"), and Ooean Avenue Properties, a California partnership (hereinafter the "Grantee"). RECITALS A. Grantee is the owner of that certain real property looated at 1535 Ooean Avenue, Santa Monica, California, which real property is more particularly desoribed in Exhibit "A" attached hereto (the "Dominant Tenement.,). B. Grantor is the owner of that certain real property located adjacent to the Dominant Tenement, which real property is more particularly described in Exhibit liB" attached hereto (the "Servient Tenementtl). - 1 - e e . c. Grantor and Grantee desire to create an easement in, over and upon the Servient Tenement and to provide for maintenance and related obligations pertaining to such easement. NOW, THEREFORE, in consideration of the mutual covenants herein contained and for other good and valuable consideration, receipt of which 1s hereby acknowledged, the parties agree as follows: l. Grant of Easement. Grantor hereby grants to Grantee an exclusive easement in, over and upon those portions of the Servient Tenement described in Exhibit "C" encompassing an area l2 feet in width to the west by 52 feet in length from the north to the south (the "Easement Area"), attached hereto and made a part hereof, to be used only for the following purposes: (a) An outdoor patio area to be utilized only for food and beverage services by Grantee and Grantee' s respective heirs, successors and assigns, and any tenants or subtenants designated by Grantee who hold or hereafter hold any leasehold estate in the Dominant Tenement and any tenants, employees, customers, visitors, licensees or invitees of any of them; (b) The construction, maintenance, repair, replaoement and reconstruction of paving, walls, landscaping, lighting, awnings and other related improvements approved by Grantor and generally depicted in Exhibit liD", attached hereto; - 2 - e e ~ (c) The installation, maintenanoe, repair and replaoement of furniture, fixtures and equipment in connection with, inoidental to, and relati!d to the serving of food and beverages. 2. Duration of Easement. The easement contained in this Agreement shall run with the Dominant Tenement, and shall be binding on, and enforceable by, Grantee for a period of fifteen (15) years from the Commenoement Date hereof, unless terminated sooner as provided herein. 3. Easement Fee. Grantee shall pay to Grantor an easement fee of Eighty-Three and Thirty-Three One Hundredths Cents ( $ . 8333) per square .foot per lDonth, representing an aggregate easement fee of $519.98 per month for the 624 square feet in the Easement area. Said easement fee is payable in advance on the first day of each Donth of the term hereof, commencing upon the date which is thirty (30) days after the date of issuance of a building permit for the improvell1ents set forth in Exhibi t 0 hereof (hereinafter the "Commenoelnent Daten). Payment to the Grantor shall be made to the order of the City of Santa Monica and made at the office of the Director of Finanoe, city Hall, 1685 Main street, Santa Monica, California 90401. 4. Adjustments to Easement Fee. The monthly easement fee provided for in Paragraph 3 of this Agreement shall be subject to annual adjustment in the following manner: (a) On the first day of the month following the first one year anniversary of the commencement Date, and upon - 3 - __ e each and every one year anni versary of the Commencement Date thereafter, during the term hereof ("Adjustment Dates"), the Consumer Price Index, All Urban Consumers, All Items, Los Angeles - Long Beach - Anaheim, California (l967 = 100) published by the Uni ted States Department of Labor, Bureau of Labor statistics (the "Index") for the month preceding the applicable Adjustment Date, shall be compared with the Index for the month which is one year prior to the applioable Adjustment Date (the UBase Index"). (b) In the event the Index as of such Adjustment Date is higher than the Base Index, the Monthly easement fee until the next Adjustment Date shall be increased by the amount derived by multiplying the monthly easement fee for the month immediately preoeding the applicable Adjustment Date, by a fraction the numerator of whioh is the Index for the measuring month immediately prior to the Adjustment Date, and the denominator of which is the Base Index. In no event shall the monthly easement fee at any time during the term hereof be less than the monthly easement fee payable immediately prior to the Adjustment Date in question, or be adjusted downward from the monthly easement fee payable upon the Commencement Date, and the Grantee shall continue to pay the monthly easement fee for the prior period until the Index is made public. When the Index is made public, Grantee shall immediately pay to Grantor the deficienoy in the monthly easement fee due to the time lag, upon Grantor's submission to Grantee of a statement setting forth the adj usted monthly easement fee reflecting the inorease in the Index. upon adj ustment of the monthly easement fee as herein - 4 - e e provided, the parties agree to execute a letter agreement refleoting the new monthly easement fee. (c) If, in the future, the Index shall be changed so that the base year differs from 1967 = lOO, the Index shall be oonverted in accordance with the conversion factor published by the united states Department of Labor, Bureau of Labor statistics. In the event the Index is discontinued or revised during the term hereof, such other governmental Index or oomputations with which it is replaced shall be used in order to obtain substantially the same result that would be obtained if the Index had not been disoontinued or revised. In the event the Index is not rep1aoed with another governmental Index or oomputation, Grantor and Grantee shall accept comparable statistios on the purchasing power of the consuming dollars published at the time of said discontinuance by a responsible financial periodical or reoognized authority. 5. Maintenance and Repairs. 5.1. Grantee's Obligation. Grantee shall keep in good order, oondition and repair the Easement Area and every part thereof, struotural and nonstructural, including, without limiting the generality of the foregoing, all fixtures, walls, foundations, eleotrioal, and lighting facilities within the Easement Area. 5.2 Surrender. On the last day of the term hereof, or upon any sooner termination, as provided herein, Grantee shall - surrender the Easement Area to Grantor in the same condition as - 5 - e e when received, broom clean, ordinary wear and tear excepted. Grantee shall remove fixtures, furnishings or other equipment installed or erected upon the Easement Area, and shall repair, at Grantee's sole expense any damage to the Easement Area occasioned by the removal of such fixtures, furnishings and equipment. Such repair shall inolude but not be limited to the patching and filling of any holes and repair of structural damage. 5.3 Grantor's Rights. If Grantee fails to perform Grantee's obligations under this Paragraph 5, Grantor may at its option, (but shall not be required to do so) enter upon the Easement Area, after ten (IO) days prior written notice to Grantee, and put the same in good order , condition and repair, and the oosts thereof together wi th interest thereon at the maximum rate then allowable by law shall become due and payable as an additional easement fee to Grantor together with Grantee's next easement fee installment; provided, however, that no written notice need be served upon Grantee where Grantee's failure to perform under this Paragraph 5 has created a real and present danger to the pUblic's health and safety. Grantor shall also have the right to exercise any other remedies, at law or in equity, including but not limited to termination of the easement upon Grantee's default hereunder. 6. Insurance and Indemnity. 6.1. Liability Insurance. Grantee shall, at Grantee's sole expense obtain and keep in force during the term of this Agreement a oomprehensive general liability insurance - 6 - policy, e insuring Grantor and Grantee e against any liability arising out of the ownership, use, oocupancy or maintenance of the Easement Area. Such insurance shall be a Combined Single Limit Polioy for bodily injury and property damage in an amount not less than One Million Dollars ($1,000,000.00) per occurrence. The policy shall oontain cross liability endorsements and shall insure performance by Grantee of the indemnity provisions of this Paragraph. The limits of said insurance shall not, however, limit the liability of Grantee hereunder. If Grantee shall fail to procure and maintain said insurance, Grantor may, but has no obligation to do so, procure and maintain the same, but at the expense of Grantee. 6.2 Workerfs Compensation Insurance. All employees of Consultant shall be included under a polioy of worker's compensation in an amount and with coverage to satisfy all requirements of the California Labor Code. 6.3 :;rnsurance Policies. Insurance required hereunder shall be in companies holding a uGeneral Polioyholders RatingU of A or better as set forth in the most current issue of UBest.s Insurance Guiden. Grantee shall deliver to Grantor copies of polioies of such insurance or certifioates evidencing the existence and amounts of such insurance with loss payable olauses satisfactory to Grantor. No suoh polioy shall be subject to cancellation or reduction of coverage or other modifioations exoept after thirty (30) days prior written notice to Grantor. - 7 - e e 6.4 Waiver of Subroaation. Grantee agrees that in the event of loss due to any perils for which it has agreed to provide insuranoe, that Grantee shall look solely to its insurance for recovery. Grantee hereby grants to City, on behalf of any insurer providing such insurance to Grantee a waiver of any right of subrogation whioh any such insurer of Grantee may acquire against Grantor by virtue of the payment of any loss under such insurance. 6.5 Additional Insured. Grantor, its City Council, boards and commissions, officers, agents, servants, and employees shall be named as an additional insured under the policy of comprehensive general liability insurance required by seotion 6.1 of this Agreement. The naming of an additional insured shall not affect any recovery to which such additional insured would be entitled under this policy if not named as suoh additional insured; and an additional insured named herein shall not be held liable for any premium or expense of any nature on such policy or any extension thereof. Any other insurance held by Grantor shall not be required to contribute anything toward any loss or expense covered by Grantee's insurance required by this Section 6. 6.6 No Limitations on Indemnification Obliaation. The procuring of any polioy of insurance by Grantee shall not be construed to be a limitation on Grantee's liability or as full performance on its part of Grantee's obligation to indemnify Grantor pursuant to Section 6.7 of this Agreement. Grantee's obligations being, notwithstanding such policies of insurance, for the full and total amount of any inj ury or loss caused by - 8 - e e Grantee's negligence or omissions, or attributable to Grantee's operations under this Agreement. 6.7 Indemnity. Grantee shall indemnify, defend and hold harmless Grantor from and against any and all olaims arising from Grantee's use of the Easement Area or from the conduot of Grantee's business and from any aotivity, work or things done, permitted or suffered by Grantee in, upon, or about the Easement Area or elsewhere and shall further indemnify and hold harmless Grantor from and against any and all olaims arising from any breach or default in the performance of any obligation on Grantee's part to be performed under the terms of this Agreement, or arising from any willful misconduct or negligence of the Grantee, or of any of Grantee's agents, contraotors or employees, and from and against all costs, attorneys' fees, expenses and liabilities incurred in the defense of any such claims or any action or proceeding brought thereon. In case any action or proceeding be brought against Grantor by reason of any such claim, Grantee upon notioe from Grantor shall defend the same at Grantee's expense by counsel satisfactory to Grantor. Grantee, as a material part of the oonsideration to Grantor, hereby assumes all risks of damage to property or injury to persons, in, upon or about the Easement Area arising from any oause and Grantee hereby waives all claims with respect thereof against Grantor. - 9 - e e 7. Termination or Interruption in Use of Easement. 7.1 Grantor may terminate the easement granted hereunder in order to provide for a public purpose, upon one (1) year prior written notice to Grantee of suoh termination. In the event that Grantee's right to use the Easement Area is terminated by City pursuant to this section 7.l, Grantee shall be allowed to remodel the interior of Grantee's restaurant building to provide for a maximum total seating capacity of 79 seats which is equivalent to the maximum seating allowed prior to the execution of this Agreement without requiring Grantee to provide additional parking. Any such remodeling shall be in compliance with all applicable health, safety and building code requirements and regulations. 7.2. Suspension or Interruption in Use of Easement Area; Abatement of Easement Fee. Grantor may suspend or interrupt Grantee's use of the Easement Area or a portion thereof in order to provide for the public health, safety or welfare, and for purposes of performing any work, including but not limited to oonstruction, maintenance or repair of streets, utility lines and pipes. In the event Grantee's use of the Easement area or a portion thereof, is suspended or interrupted by Grantor as described herein, the Easement Fee payable by Grantee shall be abated in proportion to the degree to which Grantee's use of the Easement Area is impaired during such interruption or suspension of use. Except for such abatement of the easement fee, Grantee shall have no claim against Grantor for any damage suffered by - 10 - e e reason of the suspension or interruption in use of the Easement Area. 7.3 Default. The occurrence of anyone or more of the following events shall constitute a material default and breach of this Agreement by Grantee: (a) The abandonment of the Easement Area by Grantee; (b) The failure by Grantee to make any payment of the monthly easement fee or any other payment required to be made by Grantee hereunder, as and when due, where such failure shall continue for a period of three (3) days after written notioe thereof from Grantor to Grantee; (c) The failure by Grantee to observe and perform any of the oovenants, conditions or provisions of this Agreement to be observed or performed by Grantee, other than described in paragraph (b) above, where suoh failure shall oontinue for a period of thirty (30) days after written notice hereof from Grantor to Grantee; provided, however, that if the nature of Grantee's default is suoh that more than thirty PO) days is reasonably required for its oure, then Grantee shall not be deemed to be in default if Grantee commenced suoh cure within said thirty (30) day period and - - 11 - e thereafter diligently e pursues such cure to completion. 7.4 Remedies. In the event of any such material default or breach by Grantee, Grantor may at any time thereafter, wi th or wi thout further notice or demand and without limi ting Grantor in the exercise of any right or remedy which Grantor may have by reason of such default or breach: (a) Give Grantee written notice ("Termination Notice") that the easement granted by this Agreement is terminated. The Termination Notice shall refer to this Agreement and state that the easement herein oreated is terminated and of no further force or effect. As of the date of recordation of the Termination Notioe in the office of the Los Angeles County Recorder, the easement shall terminate, and no person, firm or entity shall have any right to the use and enjoYment thereof; (b) Perform or cause to be performed such unfulfilled obligations of Grantee and be reimbursed by Grantee for the oost thereof within thirty (30) days after delivery to Grantee of written receipts reflecting the costs and evidencing fulfillment of such obligations. - 12 - 8. e Laws and Ordinances. e Grantee shall oonduct its business in accordance with all the laws, ordinances, rules and regulations applioable to such business, as from time to time shall be adopted, and Grantee shall not use the Easement Area nor any part thereof, nor permit them to be used for any purpose other than those specixied in this Agreement. 9. Permits and Licenses. Grantee shall be required to obtain any and all building permi ts that may be required in oonnection with the construction of any improvements to the Easement Area. 10. Relationship of Parties. It is understood that the oontractual relationship between Grantor and Grantee is such that the Grantee is an independent contractor and not the agent of the Grantor. 1l. Attorneys' Fees and Costs. If legal action by either party is brought because of breach OI the Agreement or to enforce a provision of this Agreement, the prevailing party shall be enti tIed to reasonable attorneys' fees and court oosts. Such fees and costs shall be payable regardless of whether said action is prosecuted to final judgment. 12. Notices. All written notices and demands of any kind which either party may be required or ~ay desire to serve on the other in connection wi th the Agreement may be served as an alternative to personal service by registered or certified mail. Any such notice or demands served by registered or certified mail shall be deposited in the United states mail, with postage - lJ - e , e thereon fully prepaid, addressed to the party so to be served and delivered to the party if not by personal service, as follows: To Grantee: To Grantor: with a Copy to: Ocean Avenue Properties c/o Philippe Chicha, General Partner 1365 Midvale Avenue Los Angeles, California 90024 City Manager city of Santa Monica l685 Main street Santa Monica, California 90401 City Attorney city of Santa Monioa 1685 Main street Santa Monioa, California 9040l servioe of any such notioe or demand so made by mail shall be deemed complete on the date of actual delivery as shown by the addressee's registered or certified reoeipt or upon the expiration of the second day after the date of mailing, whichever is earlier in time. Any party hereto may, from time to time by notice in writing served upon the other party as aforesaid, designate a different mailing address or a different person to whom all such notices or demands are thereafter to be addressed. 13. Assignment. This Agreement shall not be severable from Grantee's interest in the Dominant Tenement. Any transfer for the Dominant Tenement shall automatically operate to transfer the benefits and burdens of this Agreement. Property owner may freely sell, transfer, exchange or otherwise dispose of its interest in the Dominant Tenement or the proj ect wi thout the consent of Grantor. 14. Waivers. waiver by any party hereto of any breach of any term, covenant, or condition contained herein shall not be - 14 - e - deemed to be a waiver of any subsequent breach of the same or any other term, oovenant or oondi tion contained herein whether of the same or different oharacter. 15. Governing Law. This Agreement shall be governed by and construed in aocordance with the laws of the state of California. 16. Nondiscrimination. Neither Grantee nor any tenant or subtenant of the Easement Area shall discriminate because of sex, race, color, religion, anoestry or national origin against any person by refusing to furnish such person any service or privilege offered to or enjoyed hy the general public. 17. Taxes. This Agreement may create a possessory interest in public property which is subject to taxation. In the event such interest is created, Grantee shall pay any and all taxes levied on such interest. Grantee shall pay any and all taxes upon personal property and improvements belonging to Grantee and upon its possessory interests, if any, and Grantee or its tenants or subtenants shall pay all sales, use and other taxes levied against the operation of any business conduoted in the Dominant Tenement. 18. Incorporation of Exhibits. Exhibits nA", "B", "C", and "0" attached to this Agreement are hereby incorporated as if fully set forth herein. - 15 - 19. e Recording of Easement. e The parties hereto shall oause this Agreement to be reoorded in the offioial records of the County of Los Angeles. 20. Character of Easement. The easement granted herein is appurtenant to the Dominant Tenement. IN WITNESS WHEREOF, this Agreement has been executed by the parties as of the date herein first above written in the city of Santa Monica. GRANTOR: CITY OF SANTA MONICA By: JOHN JALILI, city Manager APPROVED AS TO FORM: ROBERT M. MYERS, City Attorney GRANTEE: OCEAN AVENUE PROPERTIES, A California Partnership PHILLIPE CHICHA, General Partner GARY FREEDMAN, General Partner LAMA028/HPW - 16 - ~ e e i - LEGAL DESCRIPTION OF DOMINANT TENEMENT EXHIBIT IIA" c . . e e LEGAL DESCRIPTION: Lot ~R" of Block 198, Town of Santa Monica, in the City of Santa Monica, In the county 01 lJOS Angeles, ~1.au:: UJ. Ca.l1fornia, as per map recorded in Book 39 Page 45 et seq., of MIscellaneous Records, and in Book 3 Pages 80 and 81 of MIscellaneous Records, in the Office of the County Recorder of said County. - . . e e ~ - LEGAL DESCRIPTION OF SERVIENT TENEMENT EXHIBIT TlB" i 4 e e . EXHIBIT "B" LEGAL DESCRIPTION OF SERVIENT TENEMENT Legal description of the sidewalk and curb area over a portion of Ocean Avenue adjoining Lots Q and R, Block 198, Town of Santa Monica, in the City of Santa Monlca, County of Los Angeles, State of California as per map recorded in Book 39, Page 45 et seq,. of Miscellaneous Records in the Office of the County Recorder of said County, more particularly described as follows: Beginning at the most westerly corner of said Lot R; thence along the Southwesterly line of Lot R, South 440 091 30" East 50.00 feet to the most Southerly corner of Lot R. Thence South 450 50' 45" West to a point 24.00 teet from the most Southerly corner of Lot R. Thence North 440 09' 30" West 50.00 feet along a line parallel with the Southwesterly line of Lot R to a point that bears South 450 50' 45" West 24.00 feet from the point of beginning. Thence North 450 50' 45" East 24.00 to the point of beginning. Said parcel of land contains an area of 1,200.00 square feet, more or less. .. ~. ~ t. e It - LEGAL DESCRIPTION OF EASEMENT AREA EXHmIT tleT! . e e . EXHIBIT "c" LEGAL DESCRIPTION OF EASEMENT AREA Legal Description of the easement areas over a portion of Ocean Avenue adjoining Lots Q and R, Block 198 of Santa Monica, in the City of Santa Monica, County of Los Angeles, State of California as per Map recorded in Book 39 page 45 et seg., of Miscellaneous Records and in Book 3 Pages 80 and 81 of Miscellaneous Records in the Office of the County Recorder of said county, more particularly described as follows: A portion of Ocean Avenue adj acent to said Lot R, beginning at the most southerly corner of said Lot R ~ thence along said Southwesterly line Lot R, North 44 degrees 09' 30" West 52.00 feet; thence at right angles South 45 degrees 50' 30" West 12.00 feet to a line parallel with and lying Southwesterly measured at right angles to aforementioned Southwesterly line of Lot R. Thence South 44 degrees 09' 30" East 52.00 feet~ thence North 45 degrees 50' 30n East 12.00 to the point of beginning, containing an area of 624 square feet, more or less. - . . ~, . e e Exhibit D Description of Improvements. Improvements shall consist of a sandblasted concrete planter approximately 29" in height along the easement perimeter, surmounted by a clear glass windscreen to a total height of approximately 8', topped by a charcoal grey canvas awning. Also included are necessary steel canopy and glass frame supports in a warm grey color, small, low growing landscaping materials and approved signage and lighting. All improvements to be accordance with those approved by the City's Architectural Review Board. I I I I I t , . J f 5 ,~ ~ t--r "'l.J \)- 1- ~~ ~ \is L~ ~~ \ I t~ Ch'& "1.\1. 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